The fate of a proposed $650 million settlement of health claims from thousands of Ground Zero responders may not be known for several days, after a federal judge Monday barred lawyers from talking about whether enough clients opted in to complete the deal.
Lawyers for the cops, firefighters and other Sept. 11 rescue and cleanup workers who faced a midnight deadline for accepting their share of the settlement were still struggling Monday afternoon to reach the 95 percent threshold required by New York City and its insurers for the deal to take effect, but said they were "optimistic."
In the last count before U.S. District Judge Alvin Hellerstein issued his gag order, the plaintiffs' lawyers said that more than 92 percent of the claimants who sued the city for illnesses allegedly stemming from cleanup work had opted in.
"We've already received more than 9,000 releases and many more of the plaintiffs have committed verbally that they will deliver their releases on Monday," Paul Napoli, whose firm represents about 10,000 claimants, said in a statement issued just after noon. But Hellerstein's order effectively barred release of any final count at midnight, leaving the outcome a mystery. Hellerstein said he was banning media comments "to avoid confusion and speculation flowing from the dissemination of incomplete information."
The judge ordered all opt-in documents be forwarded to a settlement administrator - court-appointed "allocation neutral" Matthew Garretson - by Thursday afternoon, and said Garretson will report the final tally after making sure all claimants' paperwork is in order. Neither Hellerstein or Garretson said how long that might take.
The settlement would provide a minimum of $650 million if 95 percent of claimants accept it, sliding up to $712 million if 100 percent agree. It lapses if the threshold is not reached, but lawyers familiar with the situation said that if the number falls just short, the city and its insurers might extend the deadline.
The alternative: The thousands of cases would have to go forward in court. Hellerstein would rule on legal defenses advanced by the city - including claims that it is immune from suit in a civil emergency response, and that many illnesses can't be linked to the Ground Zero cleanup. Cases that remained would go to trial.
Napoli, in his last tally before the gag order, said that as of late Saturday support for the deal was strongest among those with the most severe injuries. Those "Tier 4" plaintiffs, with cancers and serious respiratory problems, stand to receive $1 million or more each in some cases. It drops as the severity - and the available payouts - drop.
As of the weekend, Napoli said, "we show 97.3 percent of our Tier 4 clients have opted in to the settlement, along with 94.4% of Tier 3, 93% of Tier 2."
He gave no tally for Tier 1 cases - which would get a few thousand dollars because they are only from people who fear they will get sick. Napoli, in an e-mail, said Tier 1 percentages were "less but going up by the moment." Lawyers familiar with the settlement say have been the most difficult class to get to opt in.